Delhi High Court
Kshipra Jatana vs Asstt. Commissioner Of Income Tax ... on 20 May, 2022
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7290/2022 & CM APPLs.22355-22356/2022
KSHIPRA JATANA ..... Petitioner
Through: Mr. Vikram Kakar, Advocate.
versus
ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 63(1) &
ORS. ..... Respondents
Through: Mr. Kunal Sharma with Ms. Zehra
Khan and Mr. Shray Nargotra,
Advocates.
% Date of Decision: 20th May, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed seeking refund of Rs.1,52,240/-
which was recovered in excess of 10% of the total disputed tax demand for
the Assessment Year 2017-18 against the refunds due for the Assessment
Year 2020-21.
2. Learned counsel for the Petitioner states that Rs.1,52,240/- in excess
of the 10% of the disputed demand has been recovered on 7th September,
2021 from the refunds determined by the Respondents under Section 143(1)
of the Income Tax Act, 1961 [for short 'Act'] for the Assessment Year
Signature Not Verified
Digitally Signed
Signing Date:23.05.2022
19:02:30
2020-21 despite a stay order dated 11th March, 2020 in favour of the
Petitioner whereby PCIT-21 had granted stay of the demand till the disposal
of the first appeal or 30th September, 2020 whichever was earlier. He states
that the petitioner preferred an application dated 31st January, 2022 before
the respondents for extension of stay of demand as granted vide order dated
11th March, 2020 and not to take any coercive measures for recovery of
demand till the disposal of the appeal. He, however, states that said
application is pending disposal till date.
3. Learned counsel for the Petitioner further points out that no notice
under Section 245 of the Act has been issued to the Petitioner, which is a
mandatory requirement before adjusting any refund due to the Petitioner. He
states that the adjustment has been made in violation of the principle of
natural justice as no opportunity of being heard had been granted to the
Petitioner prior to such adjustment.
4. Mr. Kunal Sharma, learned counsel for the Respondents-Revenue on
instruction states that an adjustment order under Section 245 of the Act had
been passed on 28th January, 2022. He further states that as the stay order
dated 11th March, 2020 was limited in time, the respondent was well within
its right to adjust the refund.
5. This Court is of the view that the restrictive stay order dated 11th
March, 2020 issued by the Respondents granting stay to the petitioner only
till 30th September, 2020 is in violation of the directions of the CBDT as
well as previous orders of this Court wherein it has been held that the
Assessing Officer must grant stay till the disposal of the first appeal.
6. Also, keeping in view the fact that the adjustments have been made on
7th September, 2021 i.e. prior to issuance of a set off of refund order dated
Signature Not Verified
Digitally Signed
Signing Date:23.05.2022
19:02:30
28th January, 2022 under Section 245, this Court is of the opinion that the
Petitioner is entitled to refund of adjustment made in excess of 10% of the
total disputed tax demand.
7. Consequently, this Court directs the respondents to refund to the
petitioner the amount adjusted in excess of 10% of the disputed tax demands
for the Assessment Year 2017-18 within four weeks along with statutory
interest. With the aforesaid direction, the present writ petition and
applications are disposed of.
MANMOHAN, J
MANMEET PRITAM SINGH ARORA, J
MAY 20, 2022
AS
Signature Not Verified
Digitally Signed
Signing Date:23.05.2022
19:02:30
